PIL: L3 – Subjects of International Law
Who are the Subjects of International Law?
In domestic legal systems: individuals, companies, corporations have legal
personality
In international law, states, are the primary subjects of international law
Traditional view: only states possess legal personality
However, there have been many entities that do not fit the criteria for statehood that
possess rights and duties under international law: Holy See, international
organizations, belligerents, chartered companies
Legal Personality:
Rights and duties is associated with the concept of legal personality
Objective personality entity is subject to a wide range of international rights and
duties
Qualified personality – based on the consent of the subject – any legal entity may
recognise another entity as possessing personality in relation to it
States have international legal personality
International organizations can have legal personality
Other entities? Non-state actors?
Creation of States in International Law:
Controversial question about how states are created – a mix of political and legal
questions
Is statehood a question of fact or law?
No longer terrae nullius – new states are created through the dissolution/merger of
other states
Break up of Soviet Union and SFR Yugoslavia gave rise to new international
practice regarding the creation of states
Certain conditions exist for statehood. These were codified in the Montevideo
Convention on Rights and Duties of States (1933)
A state requires:
(a) A permanent population:
- A state needs to have a population that resides in that territory
- However, there is no minimum requirement for that population e.g. micro states
Tuvalu and Nauru are sovereign states and members of the UN
(b) A defined territory:
- Statehood is fundamentally linked to territory
- A political community that has no links to territory cannot achieve statehood e.g.
‘Palestinian people’ were considered a ‘people without a state’ – Palestinian
Liberation Organization (PLO) did not have control over territory when it
claimed statehood
- No requirement that borders are settled e.g. a state may be involved in a
boundary dispute with its neighbour – Israel is a state but its territorial borders
are in dispute
- Some states have been split into separate parts e.g. Pakistan (before secession of
Bangladesh) and Azerbaijan (non-contiguous)
(c) Government:
- Ability to socially organise – but no particular form of government is required
, - Questions of control required. e.g. Congo was recognised as a state, even though
it did not have effective control of its territory at independence
- States gaining independence following decolonisation often did not meet
effectiveness criteria – but nonetheless had a right to statehood
- Croatia and Bosnia Herzegovina – recognised as states despite lack of effective
control
- Statehood will not be lost through the breakdown of control e.g. ‘failed states’
such as Somalia did not lose statehood despite lack of effective government
(d) Capacity to enter into relations with other states
These criteria are focused on control of territory and effectiveness
New criteria are focused on issues such as governance, human rights, democracy
Other criteria – IS THIS UNDER CAPACITY TO ENTER INTO RELATIONS WITH
OTHER STATES (D)
Traditional criteria focus on stability and effectiveness
New criteria look at democracy and representative government
Principle of self-determination has developed as an additional criteria for statehood. E.g.
Congo was recognised as an independent state and joined the UN, despite civil war and
secession of Katanga province – right to self-determination was paramount
Unilateral declaration of independence of Rhodesia was not recognised. Why? The
focus was not on whether it met effectiveness criteria, but that it violated the principle
of self-determination
Legality – A state may not be created through a violation of international law E.g. the
illegal use of force (Crimea) or gross human rights violations (Republika Srbska) no no
statehood recognised
Principle of Self-determination:
People of colonially defined territorial units have the right to freely determine their
political status
Principle gained traction as a legal principle following the Second World War
Included in Article 1(2) UN Charter as one of the purposes of the organization
Resolution 1514 (XV) Declaration on the Granting of Independence to Colonial
Countries and Peoples “all people have the right to self-determination; by virtue of
that right they freely determine their political status and freely pursue their
economic, social and cultural development”
Special Committee on Decolonisation deals with entities that have not achieved self-
determination (subject to colonial rule)
Namibia and Western Sahara opinions of the ICJ – reaffirm the principle of self-
determination in the UN Charter
Western Sahara case – were the ties of Mauritania and Morocco sufficient to
provide a sovereign link to that territory? No. The people of Western Sahara have a
right to self-determination under international law
Content of right to self-determination:
- Do ‘all peoples’ have the right to self-determination?
Who are the Subjects of International Law?
In domestic legal systems: individuals, companies, corporations have legal
personality
In international law, states, are the primary subjects of international law
Traditional view: only states possess legal personality
However, there have been many entities that do not fit the criteria for statehood that
possess rights and duties under international law: Holy See, international
organizations, belligerents, chartered companies
Legal Personality:
Rights and duties is associated with the concept of legal personality
Objective personality entity is subject to a wide range of international rights and
duties
Qualified personality – based on the consent of the subject – any legal entity may
recognise another entity as possessing personality in relation to it
States have international legal personality
International organizations can have legal personality
Other entities? Non-state actors?
Creation of States in International Law:
Controversial question about how states are created – a mix of political and legal
questions
Is statehood a question of fact or law?
No longer terrae nullius – new states are created through the dissolution/merger of
other states
Break up of Soviet Union and SFR Yugoslavia gave rise to new international
practice regarding the creation of states
Certain conditions exist for statehood. These were codified in the Montevideo
Convention on Rights and Duties of States (1933)
A state requires:
(a) A permanent population:
- A state needs to have a population that resides in that territory
- However, there is no minimum requirement for that population e.g. micro states
Tuvalu and Nauru are sovereign states and members of the UN
(b) A defined territory:
- Statehood is fundamentally linked to territory
- A political community that has no links to territory cannot achieve statehood e.g.
‘Palestinian people’ were considered a ‘people without a state’ – Palestinian
Liberation Organization (PLO) did not have control over territory when it
claimed statehood
- No requirement that borders are settled e.g. a state may be involved in a
boundary dispute with its neighbour – Israel is a state but its territorial borders
are in dispute
- Some states have been split into separate parts e.g. Pakistan (before secession of
Bangladesh) and Azerbaijan (non-contiguous)
(c) Government:
- Ability to socially organise – but no particular form of government is required
, - Questions of control required. e.g. Congo was recognised as a state, even though
it did not have effective control of its territory at independence
- States gaining independence following decolonisation often did not meet
effectiveness criteria – but nonetheless had a right to statehood
- Croatia and Bosnia Herzegovina – recognised as states despite lack of effective
control
- Statehood will not be lost through the breakdown of control e.g. ‘failed states’
such as Somalia did not lose statehood despite lack of effective government
(d) Capacity to enter into relations with other states
These criteria are focused on control of territory and effectiveness
New criteria are focused on issues such as governance, human rights, democracy
Other criteria – IS THIS UNDER CAPACITY TO ENTER INTO RELATIONS WITH
OTHER STATES (D)
Traditional criteria focus on stability and effectiveness
New criteria look at democracy and representative government
Principle of self-determination has developed as an additional criteria for statehood. E.g.
Congo was recognised as an independent state and joined the UN, despite civil war and
secession of Katanga province – right to self-determination was paramount
Unilateral declaration of independence of Rhodesia was not recognised. Why? The
focus was not on whether it met effectiveness criteria, but that it violated the principle
of self-determination
Legality – A state may not be created through a violation of international law E.g. the
illegal use of force (Crimea) or gross human rights violations (Republika Srbska) no no
statehood recognised
Principle of Self-determination:
People of colonially defined territorial units have the right to freely determine their
political status
Principle gained traction as a legal principle following the Second World War
Included in Article 1(2) UN Charter as one of the purposes of the organization
Resolution 1514 (XV) Declaration on the Granting of Independence to Colonial
Countries and Peoples “all people have the right to self-determination; by virtue of
that right they freely determine their political status and freely pursue their
economic, social and cultural development”
Special Committee on Decolonisation deals with entities that have not achieved self-
determination (subject to colonial rule)
Namibia and Western Sahara opinions of the ICJ – reaffirm the principle of self-
determination in the UN Charter
Western Sahara case – were the ties of Mauritania and Morocco sufficient to
provide a sovereign link to that territory? No. The people of Western Sahara have a
right to self-determination under international law
Content of right to self-determination:
- Do ‘all peoples’ have the right to self-determination?
